No one said you couldn't say whatever you damn well pleased.

If a woman wants to dispose of a fetus until a certain stage of its existence, that's her right. Just like men have certain rights around the world. If folks want to speak out against "murder" or "genocide," there are plenty of out-of-the-fetal-stage forms of it they can protest against. Girls and women are being victimized across the globe.

Until then, this woman's case isn't about the morality of abortion. As long as it's legal we can move on to the legal logistics of the case.

Kevin, well I certainly don't think the defense counsel will make it about abortion, but it will be impossible for a lot of people to separate the legal issues from their personal feelings. Jury selection for this would be fun.

You should spend your days protesting the legal system then.

Or they could protest abortion. Simply because there are other forms of killing going on around the world doesn't mean what people's feelings about abortion should be disregarded.

We can talk entirely about legal issues I suppose, but there will only be like 5 of us doing so...

Yeah. Protest abortion. But save it for another case. :)

Morally, it's a wash, IMHO. She wanted an abortion and the doc was to perform it. A pro-lifer them as equally morally deficient. On one hand, they might want to punish the doc for performing abortions. On the other, they're not going to want to reward the woman for seeking one.

I agree, mostly. However, I think people may have trouble compensating the woman. The defense could make the point that a judgment wouldn't be harming the doctor, because the med mal insurance would pay. However, I imagine the judge would be pretty reluctant to allow the jury to hear much of that.

Discussion of insurance coverage wouldn't get into the courtroom, at least not for that purpose. You'll learn that in your evidence class.

I wonder what the mother is going to do/say when that child finds out...this is sad. Although I don't agree with abortion, she should get a refund since she claims the procedure wasn't done correctly. But why does she have to keep the child? If her financial issues are that much of a problem, just give the baby up for adoption and be done with it.

Thanks, sport.

Anytime.

I'm reading the article and already I've found "holes" in her defense.

1) I've never had an abortion but don't you A) bleed and B) have to come back for a post op? If that is true, 1) why didn't she notice "omg I'm not bleeding or in pain" and 2) why didn't she go to her post op?

2) The second doctor that she saw in July is just as culpable because supposedly he didn't detect the pregnancy at 20 weeks. Why is she just sueing the planned parenthood doctors? She should be suing him? (arguement about her motives for just suing them).

3) September rolls around, how the heck could you not know you are still pregnant? As a lawyer I'd be asking her, did you get your periods? If she say's no, I'd be like "hello, think about that for a second". Most women when we miss a period, we freak out. We wanna know why we are late. And if you're sexually active a pregnancy test is usually the first thing taken. I just don't get how a women can claim that she "didn't know" she was pregnant.

4) Yeah the abortion didn't work but she doesn't have to keep the child. It is called adoption. She is using this child for money, plain and simple. Which is completely unfair to the child.



She will probably win some money for the fact that the abortion was botched but I highly doubt she will win for expenses for the child. She doesn't have to keep the child. Right there it was her choice. The doctors shouldn't be responsible for that choice.

I have a hard time awarding someone based on a failed medical procedure.

Medical procedures are never 100% effective, and if as you say, she didn't go in for the post-op work, she virtually assurd that.

Two thoughts:

First, I remember (and it's been a few years) a couple torts cases that I feel are somewhat analogous. A man had an unsuccessful vasectomy and sued the doctor when he had a(nother) child. His suit was dismissed I believe. My torts professor said that no court has allowed a suit for “wrongful birth.”

Second, the timetable seems suspicious to me. She finds out she is pregnant in March, has abortion in April, and has baby in December (almost exactly 8 months after the abortion). Is it possible that the baby is not the same one that was aborted (that she got pregnant again almost immediately)?

I never thought of it that way.

Okay the article said she went in for the abortion in March 04 and that she was 20 weeks in July 04. Well counting back 20 weeks from the last week in July, it would mean that she got pregnant March 18th time frame. I highly doubt she would know she was pregnant by March 31st. Most, not all, women don't figure out they are pregnant until they are about 3-4 weeks along.
It seems like she would have had to have gotten pregnant late February, early March (prior to the 18th) for her to 1) discover her pregnancy and then have an abortion.
I'm sure that is something the defense will bring up because it is very possible that she had an abortion and then got pregnant again almost right away.

Plus, how would she have known she was 20 weeks in July when the doctor "she claims" she went to "didn't figure out she was pregnant"?

I don't know there is just so many holes in her defense. As an attorney you could really shread it to peices. Which is excatly what the lawyers will do (since heck it is their job).

Actually, according to at least one court,

Since Roe, an overwhelming majority of jurisdictions has recognized wrongful birth claims. See Lininger v. Eisenbaum, 764 P.2d 1202, 1208 n. 9 (Colo.1988) (citing numerous cases in which the cause of action has been recognized); see also Note, Father and Mother Know Best: Defining the Liability of Physicians for Inadequate Genetic Counseling, 87 YALE L.J. 1488 (1978) (discussing the issue and concluding that imposing liability on physicians vindicates societal interest in reducing the incidence of birth defects); but see Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985) (denying wrongful birth claim), cert. denied, 479 U.S. 835, 107 S.Ct. 131, 93 L.Ed.2d 75 (1986).

Walker by Pizano v. Mart, 164 Ariz. 37, 39 n3, 790 P.2d 735, 737 n3 (Ariz. 1990).

This isn't a wrongful birth action, though. "Wrongful birth" is a tort action where "the parents of a child born with birth defects allege that the negligence of those charged with prenatal testing or genetic counseling deprived them of the right to make a timely decision regarding whether to terminate a planned pregnancy because of the likelihood that their child would be born physically or mentally impaired." Id.

This what the Arizona Court, at least, called a "'wrongful conception or pregnancy.' In such actions, parents of a normal but unplanned child seek damages either from a physician who allegedly was negligent in performing a sterilization procedure or abortion, or from a pharmacist or pharmaceutical manufacturer who allegedly was negligent in dispensing or manufacturing a contraceptive prescription or device." Id. See also University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983).

Oh, I need a life.

I think law school does it to you.

Like I said, it has been a few years. I also don’t practice tort law. That’s just what I remembered my torts professor saying. Maybe it was from the Restatement and not a study of each individual state’s precedent.

Regardless, it is an interesting case. I’m curious to see if they will litigate or settle.

LOL.

You're fine because you're typing about this where it applies. If we have a thread on green apples and you type about law, then you should worry. :)

I need a majority rule here.

Some people I know who've had a D/C (basically the same procedure as an abortion for missed miscarriages) that have said their bleeding is minimal and only lasted a few days.

I can understand how a woman can not know she's pregnant if 1) she's overweight and 2) she has a hormonal imbalance such as PCOS where she would not have regular menstrual cycles. But by 20 weeks, the second Dr. really *should* have been able to tell she was pregnant. Even an external abdominal exam should have tipped the Dr. off that *something* wasn't right, unless again, the woman was overweight (only because excess fat makes it difficult to feel internal organs thoroughly).

I agree her timeline seems off. If her daughter was born around her due date, the woman would have only been 5 weeks pregnant at the time of the abortion. That's not very far along. (A woman is considered two weeks pregnant at the time of conception and usually doesn't know she is pregnant until she is technically 4 weeks along. So, at the most, the woman could have only known she was pregnant for roughly a week). If her daughter was born 1-2 weeks past her actual due date, it may be more plausible.

If she actually suffered from post partum depression, sure. I think she has to weigh the emotional toll of having a child in the world she doesn't know against the costs of raising the child and decide for herself. I don't think she should be entitled to make the doctors assume an additional cost no matter what she decides. (I already said I though she was entitled to some damages.)

Although the doctors are partially responsible for her child being in the world, they aren't solely responsible and it doesn't seem to me that they should have to assume the whole cost of the child and the damages to the mother, whatever they might be.

(I can't remember what the book was called, but I once read a somewhat cheesy novel in which a similarly unsuccessful abortion was an element of the plot. Is this some rare example of life imitating (bad) art or is there some statistically measurable number of abortions that fail to abort the child? What usually happens in such cases? Are there usually follow up directions or examines? How the heck did the second doctor miss her pregnancy at 20 weeks?)

Maybe I'm missing something... and maybe it's already been mentioned, but the abortion and everything took place in 2004. Why is this suit just happening NOW?

Timing issues aside, it said she decided to have an abortion due to financial reasons (which may or may not be true since I don't know her).... so the fact that she is suing for the costs of raising her child makes some sense to me... although I am definitely not a lawyer by any means.

This woman only wanted an abortion for financial reasons, but many many women have abortions for health reasons. Their life would be in danger if they carry through with the pregnancy and birth. What if that was the case with this woman and the abortionist put her life in danger by not performing the abortion right? I think this woman has a case, but why did she keep the baby?

Plenty of reasons. People have a certain amount of time in which they can bring a lawsuit, which is called the "statute of limitations." She may not have realized she had a legal claim. They may have been trying to settle it without filing suit (very likely). Maybe she wasn't emotionally ready to deal with it. Who knows. But there are plenty of reasons why she would wait. Litigation, even before a complaint is filed, can be a lengthy process.

Hopefully this is not TMI
 

Question 1:
I have never had an abortion (by my own choice). However, I DID have a D&C this past December :( and I was wondering the same thing. I know when I had my procedure, I did have to have a follow up a week later. The pain wasn't too bad (man, whatever they put in that IV was some good shit!) :D The pain meds that go home with you are a good help too.

You do bleed. They do examine the tissue to make sure they got it all and check for any genetic defects.

This was my experience...it might be different if it is an elective procedure

So it makes me wonder if she went to her follow-up????
And How in the hell did she not know she was pregnant at 20 weeks? There are other symptoms besides a missed menstrual cycle. If she was getting the Depo Shot, sometimes you do not get a period at all. But there are other symptoms...

I agree she should have given up the kid...that kid is gonna need some serious therapy because his mom is f*cked in the head

regarding asuadpi's questions - it is possible that she did have her periods (one of my aunts didn't know she was pregnant for a very long time b/c she was getting her periods regularly)... and in some women who take BC pills, eventually have very light almost non-existant periods... it's different for different people. I had several friends who almost never had periods because they were very A) skinny or B) very active and weren't pregnant.

kddani - thanks for the clarification... i forget about that.

I replied in another thread, but after actually reading the article, it doesn't say what the second doctor was seeing her for. She may have gone to him for something completely unreleated, like an injured toe or rash or some other random thing. If she didn't think she was pregnant, she may not have mentioned anything about it to him. She may not have told him she had an abortion in March if she didn't feel it was relevant to why she was there on that day. If she is overweight, then he might not notice a growing pregnancy. Too many what ifs.

I agree with previous posters regarding the child. Suing for the cost of raising a child that you could have given to a family who wanted a child is not a good look.

Well, (excuse me for not reading the article but it's late), if this is a civil matter, it takes time. I'm involved in a lawsuit that began in 2003 and is only now really starting to be pursued. Of course the lawyery sorts would know a lot more and are going at it quite nicely here. Carry on GC lawyers :)

Just out of curiosity, does the child involved get to sue for psychological damages, once she finds out exactly how unwanted she is or was?

2 medical situations here:

1) Most doctors that do abortions, mainly board certified OB/GYN's, don't EFF up on ALL fetus removals. They may EFF up of other finishing factors, i.e. rupturing the endometrium in the uterus or clipping the fallopians. But generally, they really cannot MISS the fetuses. They are visualized by ultrasound that is rather accurate. And the supersuction is scanned throughout the uterus...

2) There may be negligence of the doctors. The doctors may have actually not done the procedure because they were a part of this ultraconservative groups that say they'll do something and neglected to do it because they disagree with it due to personal convictions. They may have had a "mock pre-opt" work-up, there was anesthesia involved, but the procedure just was not done.

So basically, homegirl never got the procedure...

The real thing that probably happened is homegirl never followed thru with her appointments. She failed to show up for the actual procedural operation abortion. She showed up for her first one, where they do the ultrasound and see the location, the size of her uterus, safety and efficacy issues, then schedule the procedure date. And homegirl failed to show up...

The judge will throw out when the appointment records show her failure to comply.

And since she wants money, she's saying that she had a botched abortion because she's a crack whore that needs her slop and now she's lame enough to blame everyone else for her situation but herself.

AKA Monet,

Wouldn't it seem that the chances that Planned Parenthood doctors are part of the super-conservative group would be pretty low? (That's who they are in this case, I'm pretty sure.) And surely such a group would be getting sued right and left right for malpractice? It's really shocking to me that a doctor could just get away with pretending to perform a specific procedure for very long.

I'm not second guessing you on this next point but wouldn't a lawyer investigate to see that woman showed up for her actual abortion appointment before she filed suit. That would seem to be a rock solid defense in any case. "We failed to perform your abortion because you didn't actually show up for it." You're right, I think, that it would get thrown out.

Anybody who lives where there's local coverage of the case have any additional information?

Exactly, and my guess is that the statute of limitations in this case is three years, meaning that even if she had been trying to deal with the matter without bringing suit, she was now at the point where she either had to file the suit or lose the right to sue. The news article seems to indicate that the statute of limitations would have begun to run in March 2004.

I think the statute would actually be tolled until she knew or had reason to know that she was still pregnant. So that could be as late as September when she found out she was still pregnant. (I guess I need to get a life too)

I found an article about a study of first trimester abortions that said that 46 in a series of 65,000 had unintentional continued pregnancy.

I think I would argue that it shouldn't take from March until September to figure out that you're still pregnant.

I'm starting to forget what a life is.

Would it be medically possible that the woman had twins and the doctor negligently only aborted one of the fetuses without doing the pre-op procedures Monet just mentioned?

I realize that this may be a really, really stupid question.

The best person to ask is sigkapgurl. Her mother is an OB/GYN. Maybe she'd have some insight.

Honestly I can't see why not. Mainly because there have been pregnant women and they think they are having a single birth and it turns out they have twins. Usually the second twin was so high up the baby wasn't detected. I'm not an OB so I'm not sure why they wouldn't have detected a heartbeat but you never know.

3 years for statute of limitations. Hmm.

The lawyers on here, does it vary per "incident"? I ask because isn't rape like a 5 year statute of limitations?

Not a lawyer, but I do know that it does vary. It varies by state as well.

Rape is usually 5 years, and murder I believe is indefinite in all 50 states.

Makes you feel bad for those women (and even men) who were raped but because DNA wasn't used all the time until recently, their five years came and went. Some crimes I just don't feel there should be a statute of limitations, but that is a whole nother thread. LOL :D

Well, to begin with statutes of limitations vary from state to state. They also vary with causes of action (grounds for suit) -- for example, breach of contract, trespass, wrongful death, libel. And it also varies from state to state as to whether statutes of limitations apply to criminal charges, or only to some criminal charges.

Typically, statutes of limitations can range anywhere from six months to ten years. Three years is often a common 'default" statute of limitations -- that is, unless a statute specifically provides otherwise (such as one year for libel), the statute of limitations is three years.